AOS for my wife

[renster15 0]

Hi,

I am a US citizen, and I got married in 2007 to my wife here in Oakland, at that time she entered the US on a B1/B2 visa. She continued to travel to her home country to the UAE till 2009 on her B1/B2 never overstaying (she was working in Dubai at the time and wasn't sure if we wanted to live here or there). She entered again on her B1 visa in 2009, and overstayed till now and i wanted to apply for her Adjustment or Status and Green Card. Do you think she will have alot of problem? I don't have any choice but to apply at the moment but i don't want them to deport her.

Please Help!

[Harpa Timsah 13,258]

Overstay is irrelevant/forgiven for spouses of US Citizens who entered with a valid visa, so that fact won't be a problem. Good luck.

[renster15 0]

I am not much worried about the overstay, i am worried about the fact that she entered on a B1/B2. I was reading a few blogs where it said that if they enter on tourist visa, and apply for green card it gets denied.

[Inky 1,110]

I am not much worried about the overstay, i am worried about the fact that she entered on a B1/B2. I was reading a few blogs where it said that if they enter on tourist visa, and apply for green card it gets denied.

Most likely they were talking about using the visa to marry and immigrate. Which is visa fraud.

Yours was not using the B1/B2 to marry and adjust status. Overstay is irrelevant apply for the AOS.

[milimelo 4,205]

Moving to AOS from student, work, tourist visa.

[Brother Hesekiel 2,235]

Usually I agree with Harpa Timsah (and she's good!) but here I disagree.

Overstay is a non-issue when it comes to Adjustment of Status (AOS), indeed. So if a foreigner enters the US with a B1/B2, gets married, overstays, works without authorization, then files for AOS . . . all standard stuff, not a problem.

But the way I see it, you *might* have a problem. The problem is you got married, yet she left, then entered the US again -- already married to you -- with the intent to file for AOS. Now . . . intent -- too -- is not an issue, firstly because it's hard to prove, secondly, because the Adjudicator's Manual explicitly says so. What is an issue is misrepresentation, and, more so, material misrepresentation. Misrepresentation becomes material when the content of the misrepresentation would prevented the beneficiary to be admitted to the US, had it been known to the CBP officer at the time of admission.

In English: had your wife told the CBP officer at the POE when entering with her B1/B2 that she intended to file for AOS, she would not have been admitted, for sure.

What needs to be explored, therefore, is whether or not the CBP officer questioned your wife the last time she arrived in the US and/or made a note of it. Depending on whether or not that's the case, you may have a problem . . . or not.

[Tiff Huynh 1]

I came to U.S with my B2 Visa. i got married in Vegas 3 months ago then i filed AOS in Chicago Lockbox. I interviewed last week in San Jose, California. IO took my I-94 away and I need to wait his decision within 2 weeks. I received a text from my phone my case is updated with card production notice after I left his office about 2 hours later. I just got a Welcome to U.S letter this afternoon. I think you have no problem with B1/B2 Visa without intention getting married in U.S. Good luck!

[TracyTN 237]

^^I'm not sure you can say that across the board. Not all cases are like yours, particularly not the OPs.

[LIFE'SJOURNEY 970]

Agreed with Just Bob. There could be the issue of misrepresentation.

[renster15 0]

Ok let me explain a little further, her intent was never to stay here when she entered on her B1/B2. She was working full time in Dubai when she came to visit me in 2009, she stated that at the POE. She was here to celebrate her birthday with family and was planning to stay for 2-3 months. They even asked her what about work and she told them she would work remotely, which she was allowed to do. While she was here, she got laid off and we have all the documentation to show that, and thats when we thought there was no point in her going back and she just rather stay with me. She never lied at the POE.

Also, she has been coming to the US since 2001, she was an international student here (F1) for her bachelors and went back when she graduated. She kept on coming back after graduation to meet me, and I going to Dubai but in 2007 we decided to get married.

She was looking into school's for the whole of 2010 and thats why i didn't do her AOS in 2010 and now we want to buy a house and everything so i don't want my wife to be illegal. I asked an immigration lawyer and they said i shouldn't have any problem if she has stayed more than 60 days since her last entry. At this moment i don't have a choice but to file for AOS, since she has been out of status for more than 6 months.

[SisJ 13]

Hi,

I am a US citizen, and I got married in 2007 to my wife here in Oakland, at that time she entered the US on a B1/B2 visa. She continued to travel to her home country to the UAE till 2009 on her B1/B2 never overstaying (she was working in Dubai at the time and wasn't sure if we wanted to live here or there). She entered again on her B1 visa in 2009, and overstayed till now and i wanted to apply for her Adjustment or Status and Green Card. Do you think she will have alot of problem? I don't have any choice but to apply at the moment but i don't want them to deport her.

Please Help!

She should have no problem..I had a 10yr overstay on my B1/B2 visa and it never came up during the whole AOS process. The lawyer was right, she won't have any problems. Good Luck with the AOS.

[JimVaPhuong 4,863]

Ok let me explain a little further, her intent was never to stay here when she entered on her B1/B2. She was working full time in Dubai when she came to visit me in 2009, she stated that at the POE. She was here to celebrate her birthday with family and was planning to stay for 2-3 months. They even asked her what about work and she told them she would work remotely, which she was allowed to do. While she was here, she got laid off and we have all the documentation to show that, and thats when we thought there was no point in her going back and she just rather stay with me. She never lied at the POE.

Also, she has been coming to the US since 2001, she was an international student here (F1) for her bachelors and went back when she graduated. She kept on coming back after graduation to meet me, and I going to Dubai but in 2007 we decided to get married.

She was looking into school's for the whole of 2010 and thats why i didn't do her AOS in 2010 and now we want to buy a house and everything so i don't want my wife to be illegal. I asked an immigration lawyer and they said i shouldn't have any problem if she has stayed more than 60 days since her last entry. At this moment i don't have a choice but to file for AOS, since she has been out of status for more than 6 months.

One of the things they look for when trying to determine if there was preconceived intent is a change in circumstances after arriving in the US, and which was not anticipated, that led to the decision to apply for AOS. The change in circumstances for most people entering with a non-immigrant visa is that they got married, so they would question whether the marriage was anticipated before entering the US. The scenario Bob was describing was someone who was already married when they entered, and there was no change in circumstances that would indicate to the IO that the AOS application was not preconceived before entry.

In your case, it sounds like you've got sufficient evidence to show that there was a significant change in circumstances, and that the change in circumstances wasn't anticipated. I think you'll be fine.

[SisJ 13]

One of the things they look for when trying to determine if there was preconceived intent is a change in circumstances after arriving in the US, and which was not anticipated, that led to the decision to apply for AOS. The change in circumstances for most people entering with a non-immigrant visa is that they got married, so they would question whether the marriage was anticipated before entering the US. The scenario Bob was describing was someone who was already married when they entered, and there was no change in circumstances that would indicate to the IO that the AOS application was not preconceived before entry.

In your case, it sounds like you've got sufficient evidence to show that there was a significant change in circumstances, and that the change in circumstances wasn't anticipated. I think you'll be fine.

[renster15 0]

Thanks guys for all the comments, makes me feel better.

I just had one last question, do I file the Form I-601, Application for Waiver of Ground of Inadmissibility because she has been here over 180 days on her b1/b2 visa? I think not, but i just wanted to confirm before i send the package out.

[Harpa Timsah 13,258]

Nope

Edited February 2, 2011 by Harpa Timsah